RAY SUAREZ: To walk us through day-three of the hearings are two constitutional law experts who, like Judge Alito, are experienced hands in the executive branch. Ted Olson was solicitor general of the United States under President Bush from 2001 to 2004, and argued cases before the Supreme Court; he is now in private practice. Dawn Johnsen is a professor at Indiana University School of Law in Bloomington; she was the acting head of the office of legal counsel in the Clinton administration. She also served as legal director of NARAL, a reproductive rights advocacy group.

Professor Johnson, was there a difference in day two, either in the questioning or the kind of answers that came in response to those questions?

DAWN JOHNSEN: Well, I think there was very little difference in the answers. We, after two long days of questioning, have learned very little more about Judge Alito, about his views on critical legal issues.

Of course we knew a great deal going into the hearings so he has a very thorough record and the senators had a great deal to work with. But in terms of what we’ve learned from Judge Alito’s responses, I think he has spent a great deal of time demonstrating that he is a very smart, well informed, knowledgeable lawyer, judge. But he spent a lot of time describing existing doctrines, the content of legal opinions, without revealing his own views.

So I think very little new has come out of his responses. The Democratic senators who have concerns especially about his views on abortion and executive power, given what he has said about the unitary executive theory, I think today expressed greater frustration than yesterday, which is to be understood since, they’re on day two of asking the same questions and getting very little in response.

RAY SUAREZ: Mr. Olson, do you agree?

TED OLSON: I guess I do agree. I think he has said a great deal about the process of judging, and we know a great deal about him from his being a judge for 15 years. And we’ve learned a great deal about his temperament and approach.

I mean, we’ve seen an even-handed, judicious individual who appears to be fair-minded on the record and balanced. But he won’t say how he will decide cases.

In fact, he’s ethically obliged to have an open mind if he is confirmed for the Supreme Court; none of us wants justices who say that, well, I’ve already decided that. I can mail in my vote. He said that he will listen to the arguments, he will pay great respect to the decisions of the court that have already occurred, including Roe v. Wade, and accord precedential value to it, but he won’t decide in advance how he will decide a case that will come before the court.

I hope that we would not want him to do that. I would think that the American people understand that. He said how he would approach the process of judging. And we have a 15-year record of his being a judge.

RAY SUAREZ: Well, you heard Professor Johnson citing the professed frustration of some of the Democratic senators, and you talked about the legal obligations. Is it working as a strategy for a nominee? Is he giving an effective presentation?

TED OLSON: Well, I think he’s giving a very effective presentation within the limits of what he can and should do. As a strategy, I don’t know how much different he could be.

Each individual approaches it in a similar — in a different way because they’re different individuals, but Chief Justice Roberts gave essentially the same answers.

In the past, Justice Breyer, Justice Ginsburg, other members of the court, while they may have differed to a degree here and there, all of them have not — have refrained from saying how they would come out on a particular case.

Now that frustrates senators because they want to please their constituents by saying we will only vote for someone who will come out in a case the way we think our constituents would want. Yes, that’s frustrating. But I think it’s the right approach, and I think the American people think that.

RAY SUAREZ: Professor, do you agree that it’s hard to go beyond where Judge Alito has gone in his testimony?

DAWN JOHNSEN: Thank you for that question. That’s exactly what I wanted to address.

I take very strong issue with one thing that Ted just said. I think it’s very dangerous and very wrong to suggest that it somehow would be unethical for a nominee to talk about their basic legal views and judicial philosophy in response to questions. That really impugns what many nominees have done in the past and it’s just flat wrong.

I would cite back to Ted and the Republican senators today the Reagan-Meese Justice Department in 1988. They released a report where they said few factors are more critical to the future of the nation than the values and philosophies of those who populate the federal judiciary. And that’s pretty close to a direct quote.

They went on to advocate very specific questioning by the Senate and very serious consideration by the president of potential Supreme Court justices’ legal views, values, philosophies.

Of course, they at the time were advocating the overruling of Roe v. Wade and, of course, Griswold v. Connecticut as well, but the principle I think has shifted dramatically. As Sen. Specter said at the opening of these hearings and John Roberts’ hearings, it’s became a game where nominees say as little as they can and still get confirmed.

It’s better to acknowledge that’s what’s going on rather than as I’m afraid some of the senators and Ted just suggested that it would be unethical to do otherwise.

Of course, he shouldn’t say how he would rule in a particular case, but he can talk his legal views and philosophy, how he would approach issues, what he thinks about decided cases like Roe v. Wade, just as he did about Griswold.

And that’s what the Reagan-Meese Justice Department advocated back in the ’80s when Judge Alito was working there.

RAY SUAREZ: How do you respond to that?

TED OLSON: Well I know a little bit about the Reagan Justice Department because I was a part of it for four years. I don’t know of any instance where the Reagan Justice Department asked a nominee for judicial appointment as to how they would rule on a particular case or how they felt about decided cases.

Yes, an individual’s philosophy, general approach to the law, those sorts of things I don’t disagree with Professor Johnson about that, and I think we’ve had almost fifteen or twenty hours of that from Judge Alito already, plus we’ve had fifteen years of him as a judge. We know the judicial philosophy that he brings to decision-making.

But what I meant– and maybe I should have been more clear about this– that a judge has to have an open mind.

An issue involving abortion or the death penalty or the other issues that come before the court, every litigant is entitled to a judge who will say, I haven’t decided that. I may have decided other cases that are like that, but this case is different or it would not be before the Supreme Court of the United States.

And so while there’s pushing by the senators of nominees to stake out a position, I think Judge Alito — and I think the American people think that Judge Alito’s been very forthcoming about his philosophy and how he approaches the process of judging.

But he just won’t say how he would decide issues of the day that are going to come before him, and I don’t think he should.

RAY SUAREZ: Well, Professor, certain senators tried to use their opportunity today not to talk about the future or cases that might come before the court but to talk about past judgments of Judge Alito. One in particular was Sen. Durbin of Illinois who walked him through the cases, the particulars of cases from his career as an appellate court judge. Did you hear anything revealing there? Was it an effective use of the time?

DAWN JOHNSEN: I think not really because again in those cases Judge Alito tended to simply describe his decisions and say in cases where the senator was critical of the outcome he would say, I really struggled over that one. That was a tough case.

I think that the senators in addition to talking about his record as a judge maybe a more effectively talked about very clear statements he made before he became a judge.

For example, here, of course, a judge has to have an open mind, a Supreme Court justice does, but here we have a nominee who has said in the past,” I believe the Constitution does not protect the right to choose abortion.”

DAWN JOHNSEN: Another very, very important area today is executive power. And that’s one thing that I didn’t see in your clip the beginning of this show — many questions about whether he would as a justice properly constrain presidential power. In the past he has advocated a very sweeping notion of presidential power known as the unitary executive. And that is something he should talk openly about.

Current President Bush recently cited unitary executive in a signing statement where he essentially said, you know, I’m signing the McCain amendment that would prohibit cruel, inhumane and degrading treatment of prisoners as well as torture but I retain the constitutional authority under the unitary executive theory and as commander in chief to not comply with that statute where I believe I should not.

And so that is a very important issue of current interest, whether as the Supreme Court justice he would constrain presidential power, especially when the president seeks to act contrary to a federal law.

RAY SUAREZ: And, Ted Olson, hasn’t Judge Alito written and spoken very unequivocally in support of signing statements and the unitary executive?

TED OLSON: Well, there’s two things there: The Clinton administration, of which Professor Johnson was a part, and the Reagan administration and the two Bush presidencies have issued signing statements when they’ve signed legislation, articulating what their conclusions are with respect to aspects of the law.

The president is part of the legislative process in that he signs legislation or he may veto legislation, and the Constitution vests in the president and only the president the responsibility faithfully to take care that the laws be executed, be faithfully executed.

That leads to the question about a unitary executive. That was debated in 1787, and the founders decided that one president rather than three presidents and to vest executive power in “a” president and not in the Senate and not in the courts and things of that nature.

There’s an issue here about executive power that members of the Justice Department, members of the administration support strong executives. They work for the executive. They think the executive can be effective as an individual and working for a single executive.

But John Roberts — I mean, Sam Alito has been a judge for 15 years and he’s rejected executive decisions. He’s overturned acts of administrative agencies and executive agencies. So it’s one thing when you’re an advocate for executive power as a member of executive branch. It’s another when you’re a part of the judiciary. And he’s demonstrated that he can and will check the executive, and I have no doubt that he will.

RAY SUAREZ: I wanted to briefly get to, professor, one of the more interesting moments earlier today when his own voice, husky with emotion, Sen. Lindsey Graham, apologized to the nominee, said that no one should have to go through what he was going through.

In your view, in what you’ve seen in the three days of hearings, the two days of question and answers, has it been so rough, has it been beyond – beyond the pale in the way that a sitting member of the panel should be apologizing to the nominee?

DAWN JOHNSEN: You know, I was very surprised by that because I believe that the senators of both political parties, all the senators, have been very polite.

The questions he was talking about in particular there had to do with Judge Alito’s membership in CAP, Concerned Alumni of Princeton, a discriminatory, very offensive organization that he boasted about his membership in and listed it as one of his two membership organizations on an application for jobs at the Office of Legal Counsel where Ted and I both worked.

So questions about membership in that organization are absolutely to be expected. And I believe the way he was asked about his membership has been quite respectful, particularly in light of his response, which is, I don’t even remember being a member. I mean, that is frustrating for senators who want to know why he was a member and what he thought about the organization.

I just want to say one thing about the unitary executive.

RAY SUAREZ: Please, very quickly.

DAWN JOHNSEN: Very quick. Ted Olson mentioned that government lawyers do support executive power. I was a government lawyer. We definitely in the Clinton administration did not adhere to the unitary executive theory.

Judge Alito said he supported it in the year 2000 when he was a judge so that was not at the time he was at the office of legal counsel.

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